Oregon Supreme Ct, Dec. 12, 2013

by: Abassos • December 12, 2013 • no comments

Burglary - Jury Concurrence is Not Required for Entering vs Remaining

A Boots instruction for jury concurrence is not required for the element of "entering or remaining unlawfully". Article I, Section 11 does not require jury concurrence on alternative means of proving a single element. A concurrence instruction is required where the legislature intended each of the alternatives to be a separate statutory element. Here, "entering unlawfully" and "remaining unlawfully" are "interchangeable and often overlapping ways of proving the same element. Moreover, while there are constitutional limits on the legislature's ability to identify alternative means of proving the same element, "entering or remaining" is neither "so repugnant that they could not have been joined in a single count" nor "the sort of disparate unrelated acts" that trigger Article I, Section 11.